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Judge Foster Case Study Criminal Law

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Part one: I strongly believe that judge Foster’s view is more persuasive. The judges should take into consideration the legislative intent when judges interpret and apply statutes due to the fact that words do not always show the intent that the legislative branch had when it created a statute. As a result, the goal of the statute will not be reached. The fact that words sometimes do not convey the real message of it is really important when it comes to criminal system. It will never be fair to punish a person when the judge knows that the words existing in the statute are not what the legislative branch intended to punish. Similarly, not punishing someone whose conduct is exactly what the legislature wanted to punish due to the fact that…show more content…
The judges who consider the legislative intent will look for a pervious cases showing how to the judges in these cases interpreted and applied in order to solve the ambiguity they may face. However, the judges who decide to apply the literal meaning of statutes have to use the words existing in the statutes regardless of whether these words have clear meaning or…show more content…
It is really important to distinguish between how the common law and Model Penal Code look at Attempt. Under common law, one is not guilty of attempt unless he is dangerously close to commit the crime after he takes a substantial step. However, in Model Penal Code land, one only needs to take a substantial change in order to be guilty of Attempt. Furthermore, under the common law, there is the legal impossibility and the factual impossibility. Legal impossibility which occurs when one’ conduct is not illegal could be used as a defense. However, the factual impossibility, which happens when one believes that his conduct is considered to be illegal. For instance, he believes that the box he received today contains drugs while it does contain drugs. In McElory, where the defendant was charged of attempted possession of dangerous drugs, the defendant arose the issue of factual impossibility, however, the fact that factual impossibility is not a defense led the defendant to lose. Under the Model Penal Code which defines the attempt to be “a person is guilty of an attempt to commit a crime if, acting with kind of culpability otherwise required for the commission of the crime” , there are three ways that lead you to be guilty of attempt. First of all, Missing circumstances that occurs when you
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